When you have planned ahead you can be confident that you and your loved ones will be looked after if circumstances change through your life. Your rights and wishes can be respected if they are properly documented. If you do not have planning ahead documents prepared when they are required, a Court or Tribunal may need to make decisions for you. Decisions may need to be made on your behalf which could be against your wishes. It is definitely better to plan ahead.
Anybody over the age of 18, with capacity, should consider planning ahead. Capacity refers to a person’s ability to understand and appreciate the significance of the decisions they are making. If a person does not have capacity, the decisions they are making may not be legally recognised. The best ways to plan ahead are by putting in place the following documents:
A Will is a legal document that sets out who you want to receive your assets when you die. By making a Will, you help to ensure your assets will be distributed according to your wishes when you die. Even if you think you don’t have much it is still recommended that you make a Will.
Do it yourself Will Kits are not advisable as a Will must conform to strict legal requirements. Anyone who is not legally qualified risks making a mistake or creating uncertainty. Unclear wording is common in homemade Wills. Questions on validity and wording have to be decided by the Supreme Court and can result in large costs and delays.
ALREADY HAVE A WILL?
Think about whether it is time to update it so it accurately reflects your current circumstances. Situations where you may want to update your Will include:
Marriage, Buying a house, Separation or Divorce, Birth of children or grandchildren into your family, Retirement, or if an Executor named in your Will has died.
A Will is a legal document that sets out who you want to receive your assets when you die.
An Executor of a Will carries out the wishes of a person after they die. The role of the Executor is to manage the Estate within the terms of the Will, manage the administration tasks and protect the assets of the Estate. The Executor must comply with various laws and rules that govern the administration of deceased Estates. They may need to resolve conflict between your beneficiaries in carrying out your wishes.
Being an Executor can be a demanding role and should be fulfilled by someone you can trust – or you might consider your Solicitor or your Accountant if you do not want to burden family or friends at a time of grief.
POWER OF ATTORNEY
A Power of Attorney is a legal document appointing a person of your choice to manage your financial and legal affairs while you are alive. This person is then known as your Attorney. An Attorney cannot make decisions about your lifestyle, medical treatment or welfare. A Power of Attorney ceases when you die.
When can an Attorney manage my affairs?
You may choose to make a Power of Attorney because you are travelling overseas and want to give your Attorney access to your bank accounts to pay your bills or manage your finances while you are away. Alternatively, it is beneficial to have a Power of Attorney if you become unwell and are no longer able to manage your financial affairs.
It does not mean that you will lose control over your financial affairs. It simply gives your attorney formal authority according to your instructions. Your Power of Attorney can be cancelled (revoked) at any time provided you have the mental capacity to do so.
What is the difference between an ordinary Power of Attorney and Enduring Power of Attorney?
An ordinary Power of Attorney no longer has effect if a person loses capacity. An Enduring Power of Attorney continues to be in effect after you lose the capacity to manage your own affairs. You can make either document, but you should consider an Enduring Power of Attorney in case of future incapacity or as you age. Once you lose capacity the opportunity to appoint someone you choose is lost. If you are no longer able to manage your financial affairs and you do not have an Enduring Power of Attorney, then an application to a Court or Tribunal may be required to appoint a financial manager of your affairs.
An Enduring Guardian can make health and lifestyle decisions for you if you lose the capacity to make your own decisions at some time in the future. It is important to have both an Enduring Guardian and a Power of Attorney. Your Attorney cannot make decisions about where you should live, what treatment you should have or what services you should receive. Your Enduring Guardian can make these decisions. The appointment of your Enduring Guardian takes effect only if you lose the capacity to make your own health and lifestyle decisions.
An Enduring Guardian makes decisions about: accommodation, health care medical/dental consent services e.g. meals on wheels. When deciding who to appoint as your Enduring Guardian you should consider who would best understand your values and wishes, and who would have the skills to make good decisions for you.
ADVANCE CARE DIRECTIVE
You might also like to consider Advance Care Planning. This is a process that helps you to plan for future medical care. This process involves you thinking about your values, beliefs and your wishes in relation to the type of medical and health care you would like to have if you cannot make your own decisions. An important part of the planning process is to discuss your wishes with people who are close to you, as well as talking to your doctor.
What is an Advance Care Directive?
As part of the Advance Care Planning process, you may decide to write an Advance Care Directive. An Advance Care Directive records your specific wishes about treatment that you would like to have in the event of life-threatening illness or injury, and any treatments you would refuse. Advance Care Directives are something you generally write yourself in consultation with your doctor and family.
This advice is general in nature and you should consult one of our Solicitors to discuss your specific Personal & Estate Planning needs.